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Gwaitalata v Futaburi [1999] SBLC 3; Land Case No 7 of 93 (6 October 1999)

IN THE MALAITA LOCAL COURT

JUDGMENT

Date: 6th October 1999

On Land Case No. 7/93

Between:

1) Andrew Gwaitalata
2) Hamuel Goemani
Plaintiffs

And:

1) Jacinet Futaburi
2) Nelson Konai.
Defendants

The subject of the issue/dispute is Faino'orae/Kwarifau land

The plaintiffs produced to the Court exhibit PFF 1, 2, 3 of the maps. The plaintiffs' claim that Kwarifau is a parcel of land of Faino'orae land. And the defendants' claim that Kwarifau is a tribal land and not a parcel of land. Just a brief history of this matter.

Matter came before the Local Court in 1994 and judgment was in the favour of the then defendants in this matter of 1999. The plaintiffs (who are in this dispute in 1999) appeal against the decision on one of the five (5) grounds, that the CLAC, ruled to have the appeal allowed. And the case to be reheard by or before a separately constituted Local Court (justice).

The plaintiff Mr. Andrew Gwaitalafa in his sworn evidence stated that his generation (came) started from Budilao to David Inite'e — which the Court sees as in the 20th generation. He stated that his principal tambu sacrificial places are all in Faino'orae land and Kwarifau is just a parcel of land of Faino'orae. The second plaintiff who is Hamuel Goemani made a sworn evidence as well. He also confirmed that his generation is beginning from Budigao until Gereomea Ke'e. The Court sees as he is in the 11th generation. He said is the defendants did not remove the original boundary into Faino'orae he would not be taking the matter to the Court. We questioned ourselves, if this is the case, then were the defendants truly of Kwarifau land as a parcel of land of Faino'orae land but due to the removing of the original boundary that creates this dispute? We do not agree to this again when we look into the issue as the defendants argue that Kwarifau is a tribal land or customary land. The plaintiffs in this matter called five (5) witnesses.

First witness is Uruel Inito'ona.

This witness was sworn on Bible and started his evidence as follows, that he will not talk about any generation or tambu place or boundary. Rather just to declare that the plaintiff particularly Andrew Gwaitalafa had given to him the piece of land Kwarifau. He said that Busufoaga married to Gwaino'o from Kwalo the child of Kurufo'oka where he had been descendant of or from. There were questions and answers put to the witness. We shall say our inferences after summing all evidences put to the Court.

PW2 Selvanus Manifala also made a sworn evidence. He was only telling the Court how that he born of female side of the Faino'orae land. The Court is of the view that this witness should not be cross examined by the defendants on the ground that the evidence in chief raised is not of Kwarifau the defendants claimed. Although the defendants had the right to do so, this Court will only waste its time hearing issues that are out of the subject matter. The Court then with no hesitation ruled that the witness is disqualified to that effect. The Court acknowledged the witness that his evidence is unchallenged and believe that he is truly a descendant of the female side of Faino'orae land.

The Court called for the Plaintiffs' witness PW3. And one namely Dammie. When the Court asked for the witnesses surname, he replied Dammie and Dammie alone no other surname. This witness was also sworn on Bible. This witness was disqualified on the ground that his made of answers seem to be degrading the plaintiffs who they called him to be a competent witness to their right over Kwaifau land. The Court analyse him for the first few minutes on the first line of questions during cross examination that he seems to be deteriorating his own evidence and particularly the plaintiffs' as we had explained earlier. Example in one of his answers, he said he was staying at his home and was called by Gwaitalafa to come and witness for him. This witness is not a comparable witness and does not give the Court a position to determine the truth of the whole truth.

He was then disqualified by the Court we see this as not according to section 15 of the Local Court Act Cap 19. Where we quote:

S. 15" Any person appearing before a Local Court to give evidence in any case....
Be examined or give evidence on oath.... Declares to be binding on his Conscience" end of quote.

This we see the witness has no conscience to his evidence. Court then hears from PW4 Mr. Jacinet Puia. This witness made a sworn evidence. He said that Mr. Andrew Gwaitalafa owns Faino'orae because he share a common spearline (boundary). He reiterated that the spearline where Futaburi (the first defendant) put at Gwaiadake did not agree to the spearline Kuruga he rather agrees to is starting from Busubobono down Talifau. This is the common boundary between Faino'orae and Fauabu land where he owned.

The Court is also of the view that the issue is of Kwarifau land. Boundary of Fauabu and Faino'orae could have been taken in the likelihood of common spearline (boundary) of two different lands or tribal. We now turn to look the fifth (5) and the last Mr. Mathias Gulu, witness of the plaintiff. Witness made a sworn evidence. He stated that he and Mr. Gwaitalafa born from two brothers. He stated in brief his genealogy and confirmed that Kwarifau was a given land as a parcel of land of Faino'orae land. The spearline starts at Busufo'oka followed a stream right to Kwaiafa then to Gwaigwai stream. From here right to Busufo'oka again. He denied the spearline the defendants put as not the proper one. Big surprise of the witness is Kwarifau is too small yet they (defendants) took it off or out from Fainoorae and Fauabu. We will not go further into his evidence as we think we will see against the survey to compare to his evidence as Kwarifau is too small and the defendants wanted to take it from Faino'orae and Fauabu lands.

When we look to the defendants' evidence. Defendant one (Mr. Nelson Konai) made sworn evidence. He stated his genealogy beginning from Ainigao up until Abraham Timi who begat Peter. Defendant produced to the Court document of genealogy and marked as exhibit DF "B" prior to this he produced sketch map and marked as exhibit DF "A".

In his evidence inchief, he mentioned 10 important grounds in Kwarifau land.

1. ANOAKALO - where the (akalo) devil use for sacrifice. Principal places (a) Kwarifau (b) Fo'oka (c) Kwai * Kwaibora (section they called Kwaikwai).
2. ANOWAE settlement for people — 34 places.
3. ANOSAREWAE — Place for gardening. For the people of Kwarifau.
4. ANOALA For gardening for maoma. And 4 others.
5. ANOKAFO Water supply for drinking and 4 others.
6. ANORAU Place to collect leaves.
7. ANOKAFO Place for collecting waters (again) until today — and 5 others.
8. ANOSIBOLOA —Place to supply needs to the people of Kwarifau — and seven (7) others.
9. ANOSIUFA Place for ngali nuts for use to the people of Kwarifau. And two other places.
10. ANORAE Place for burials of the people of Kwarifau — And seven (7) other place.

Defendant further stated that the boundary of Kwarifau starts from Gwaiadake where separate Faino'orae and Kwarifau. Followed down stream of Gwaigwai down to the river of Kwaiafa and adjacent to the mother land Toto. Bottom of Kwarifau came down to Kiluafara stream and connected to a stream known as ILAILA stream and joined Darifufu stream and end at Wafu river (eastern side of the land). Then followed from Wafu river joined to Talifu stream. Then followed Busunadai then to Gwaiadake. This is the complete boundary of Kwarifau land.

Defendant Mr. Nelson Konai referred the Court to a case in 1977 31st August Wednesday between Adadauwa and Hendry Luluagalo Vs Maebata and Tome Gogo brothers of Futaburi on Kwarifau land held at Rarata by a chiefs panel. The decision was in the favour of Tome Gogo and his elder brother Maebata have the right over Kwarifau land. Produced to be Court the copy of the decision as marked exhibit "DF" 'D' On the 31/3/93, Andrew Gwaitalafa and Hamuel Goemani Vs Jacinet Futaburi and Nelson Konai case held by Kwasibu Council of chiefs of East Kwara'ae. Produced the decision copy as marked ...Exhibit DF 'E'. Produced another document of 1/3/94 land case no. 7/93 Faino'orae/Kwarifau land case held at Atori between Andrew Gwaitalafa and Hamuel Goemani Vs Jacient Futaburi and Nelson Konai. He stated that the Court finds the fact that the defendants — who are in this present matter were having the right over Kwarifau land. Produced to the Court copy of decision and marked as exhibit DF 'F. He stated that survey land prove that the fact of the defendants in 1994. Produced for the Court exhibit as marked DF 'G;'. He told the Court that the CLAC on the 28/9/95 Andrew Gwaitalafa had made a false statement particularly (lb) where produced to the Court and marked as exhibit DF 'I'.

He read to the Court the reasons for why he said Andrew Gwaitalafa made a false ground in the appeal against the decision in 1994 and as it was marked as exhibit DF '1'.

When the Court asked for the first defendant Mr. Jacinet Futaburi what he has to say in addition, he stated he agreed to what the second defendant had told Court. The defendant then called for the first out of the two (2) witnesses they all called. DF Wl. Mr. Senas Ariana made a sworn evidence. He stated that he was a witness for the defendant in 1994. He said that in 1959, Oct 18 until the year 1994, (41 years now) the land (the spearline) boundary been fixed and commonly agreed on by the old people during those times. He produced to the Court of document and marked as exhibit DW1 — 1 of 12/8/59 Faino'orae already fixed boundary. He stated what happened in this issue is like the Israelites days. He gave a book in the Holy Bible as Deu 27.17 what recorded before never changed but true. He also gave the book Prov. 22:28. He said if the father put something it cannot be changed. This is what happened to the parties one wants to remove the mark. We apologise for not sitting the two respective books of the Bible. But the message we draw given an idea that the boundary been established by the forefathers should not be removed or erred against another brethen. This witness produced to the Court a document about the old record of his evidence and marked as exhibit DW1 — 2 in the document only parts 22 & 23 Court is interested in because it involves or about the present issue before this Court. Produced to the Court another document of his previous evidence and marked as exhibit DF W1— 3. Produced three (3) documents to the Court. What the Court get from this witness is he claims to be the owner of Faino'orae and Kwarifau land is another tribal land of another person (s).

The matter was adjourned for the 27th September 1999 of 9 a.m for the last witness of the defendants. On this date and day, the second defendant Mr. Nelson Konai was absent. Mr. Gwaitalafa then objected that the matter should not be proceeded since Mr. Konai is not present. The Court ruled that the matter can still be proceeded even if the defendant Mr. Konai is present the proceedings is only to hear the witness. He will not talking. Rather only the plaintiffs and the Court will (talk) ask question on the witness. Court then ruled that matter can still be proceeded.

The witness then Mr. Abraham Timi S.O.B and made a very short evidence. Only to confirm to the Court that his father has to say. We do not think we can allow ourselves time to consider his evidence as we see his evidence as hearsay.

When we looked to the survey, we are not hesitated to say that our finding on the survey is a rather technical. Technical in the sense that both parties knowing fully well their position to show to the Court their tambu sites.

Since this is the second time for a Court panel to survey the tambu sites. In the generally finding of the Court in the survey, the plaintiffs had not shown any tambu sites in the land in dispute. We do note that the plaintiffs must have their own principal tambu places —Faino'orae. We find it hard to believe the plaintiffs in this contrary. In any Court of law, if there is a doubt in the mind of the decision making body, that doubt must be cleared, otherwise it will lead into a dissatisfactory. In this contrary, balance of probability is not seen to be seen so that a air balance decision will be given.

When we looked at the defendants, we were shown all that have been emphasised in the evidence inchief such as I. Maomanikeni fire. II. Fire for Akalonimae. III. Fire for Maomaniwane. IV. Fire for Etea. . Fire for Suasia. VII. Sacrificial fire for Suifuila. Also shown were the bones of the custom priests (Fata'abu). Also a custom shell (Bunu) to blow when the priest wanted other priests from tribes (can) to come and eat with him of the sacrificed pig. The claimed by the plaintiff was the home or where Kunufo'oka was kept. However, the defendants then claimed the labu is theirs for the purpose, if there are still meat of the sacrificial pig, must be eaten here and not to be taken home.

Because of the inconsistency of the plaintiffs evidences particularly on their respective genealogy, one 20 generations the other 11 generations. Leaves much room for a doubt to be capitalized. In the contrary balance of probability is not satisfying to the Court. In any land dispute, the principal tambu places must be shown to the Court for a satisfactory determination when deciding the decision. For this case the Plaintiffs as we have stated earlier. It is not reasonable to see and consider that whilst the plaintiffs claimed labu that Kurufo'oka had been hidden inside and did not know anything about the 6 sacrificial principal tambu sites just few metres away on the same hill, the defendants showed and explained to the Court.

Our consideration on this particular issue will be different had it been for the plaintiffs to show at least one or two tambu sites in Kwarifau land.

The Court do not consider the documents procedured to the Court by the first defendant Mr. Nelson Konaife'e. And also the document produced to the Court by DW1 Mr. Senas Ariana. This Court must make it clear to both parties that we will not consider nor determine on the previous Court findings nor determine on the CLAC as the Appellate Court to hear appeals of judgment on Local Courts. Rather we will consider the documents as prove of been the matter was heard by different Courts operating on different jurisdiction as permitted under the Act (Local Court Act).

DECISION

Kwarifau is a true tribal land or customary land and not a parcel of land as alleged by the plaintiffs. Faino'orae land is truly a separate tribal land from Kwarifau land.

The boundary of Kwarifau is determined by the Court as starting from Gwaiadake where separated Faino'orae and Kwarifau. Followed down to the river of Kwaiafa that adjacent to the mother land called TOTO. (Bottom of Kwarifau goes down to Kiluafara stream and connected to a stream known as Ilaila stream and joined to Darifufu stream. Ended at Wafu river (eastern side of the land). Then followed Busunadai then to Gwaiadake. This is the true and original boundary of Kwarifau land.

The rightful owners of Kwarifau are Mr. Nelson Konai and Jacinet Futaburi for on the behalf of the tribe and the people of Kwarifau. Plaintiffs, if you want to claim (the) any parcel or any land, you may do so from the land of Siale where your devil came from and at or from Aimamako tribal county. Starting from today and so forth, you will not claim and you have no properties in Kwarifau.

Court: Explained to the plaintiffs right to appeal within 90 days (3 months) starting from today's date. Period for appeal expires on the 6/01/2000.

Parties to meet your own costs.

Dated: 6/10/99